Is Twitter Harrasment a Crime?

The Federal Public Defender’s Office in Maryland is mounting a vigorous defense of a man accused of harassing someone on Twitter. As the New York Times reports,

Twitter posts have fueled defamation suits in civil courts worldwide. But this is a criminal case, invoking a somewhat rarely used law on cyberstalking. And it straddles a new, thin line between online communications that can be upsetting — even frightening — and constitutional safeguards on freedom of expression.

Apparently, Mr. Cassidy created a large number of posts directed at one woman. The United States Attorney’s Office for the District of Maryland is prosecuting him. It’s an odd thing to use a criminal prosecution to make law. If conduct is so bad that it would land you in prison, you should be able to know clearly – and in advance – if it’s against the law. Yet here it looks like the boundary of the law isn’t that clear.

As Eugene Volokh explains,

This, it seems to me unconstitutional. Speech doesn’t lose its First Amendment protection just because it intentionally causes emotional distress to a person (see Snyder v. Phelps and Hustler v. Falwell), even when there’s a “course of conduct” consisting of two or more incidents of speech rather than just one. If Larry Flynt had published several nasty criticisms of Jerry Falwell rather than just the one in Hustler v. Falwell, his speech would have remained protected. So this portion of the statute is overbroad on its face.